People v. Kibbe , 41 A.D.2d 228 ( 1973 )

Henry, J.

Defendants robbed .a helplessly drunken man and left him at the side of a highway where he was struck by an automobile and killed. They were convicted of the crimes of murder, second degree robbery and third degree grand larceny. They both voluntarily confessed to the crimes and the only serious question before us is whether the death was caused by their acts.

Appellants argue that although the evidence might support a finding that defendants evinced a depraved indifference to human life and that they engaged in conduct which created a grave risk of death to Stafford, his death was not caused thereby ,but was caused by Michael Blake in the operation of his automobile. In our opinion the evidence sufficiently shows that the death was caused by the acts of defendants as well as by the acts of Blake. “ Where separate acts of negligence combine to produce directly a single injury each tort-feasor is responsible for the entire result, even though his act alone might not have caused it ” (Hill v. Edmonds, 26 A D 2d 554, 555).

The acts of defendants which combined with the acts of Blake to cause Stafford’s death consisted of leaving him in a helplessly drunken condition on the side of the road in an area, of open fields where there were no nearby houses and where the road was bordered by snowbanks leaving no place but the roadway in which he could walk. It was apparent that to avoid death from exposure the only place in which he could walk to get help would be in the roadway, where in his condition there existed a grave risk that he would be killed by an automobile.

The court in charging the jury informed them of the applicable law and facts and the jury found each of them guilty.

While we agree with the dissenting Justice’s statement that the trial court’s charge respecting the cause of death was lacking in detail, we do not feel that a new trial should be granted. Appellants have not raised any question as to the sufficiency of the charge on these appeals and their attorneys took no exception and made no request respecting the cause of death at the trial. ;

In our opinion the charge together with language of the statutes and indictment and the evidence were sufficient to inform the jury on this subject and reversal of the judgments is not réquired in the interest 'of justice. (See People v. Palmer, 26 A D 2d 892, affd. 31 N Y 2d 1053.)